MacDonald v. MacDonald (2009, Ont. S.C.J.): Children’s Best Interests

The parties in this case included a mother (grandmother to the children) and daughter that were involved in custody litigation. The daughter is a single parent with sole custody of all three children. The daughter forbids the grandmother of any access to the children. There has been ongoing volatility and acrimony in the mother-daughter relationship. Due to this strained relationship, the grandmother had become estranged from the children. The grandmother was asking the Honourable Court for access to her grandchildren, and she claimed grandparent alienation.

Justice Pazaratz’s decision was premised on the paramount principle of what is in the best interests of the children. Justice Pazaratz ordered that the children have indirect access to the grandmother via mail and any other form of direct access or communication was restrained. The judge considered the best interests of the children by taking into account the children’s wishes not to see their grandmother although somewhat influenced by their mother’s negativity, and the obvious fact that the ongoing poor rapport between mother and daughter would have a deleterious affect on the children during access visits.

Historically, third parties including grandparents lacked a legal right to claim access to grandchildren. However, with the contemporary view of extended families and access being determined by what is in the best interests of the children (i.e.: how strong, important, and healthy such a relationship will be to the child) access to third parties is considered by the Court. In this decision, the judge rightfully distinguished access is not about what is in the best interest of the grandparent, rather the question is what is in the best interest of the children. Justice Pazaratz decided that the insistence of access on the grandmother’s terms coupled with the fact that the parties ongoing conflict would disrupt and stress the children does not warrant direct access for the grandmother.

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